Gladstone Ports Corporation Limited T/A Gladstone Ports Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Workers' Union, The

[2024] FWC 3551

[2024] FWC 3551

FAIR WORK COMMISSION

SUPPLEMENTARY REASONS

Fair Work Act 2009

s.418—Industrial action

Gladstone Ports Corporation Limited T/A Gladstone Ports Corporation
v

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Workers’ Union, The

(C2024/9026)

DEPUTY PRESIDENT DOBSON BRISBANE, 20 DECEMBER 2024

Application for an order to stop alleged unprotected industrial action at the Port of Gladstone, Port of Rockhampton, Port of Bundaberg, and the non-trading Port of Maryborough – s.414(6) – whether notice requirements have been met - industrial action not unprotected – application dismissed – Supplementary reasons

1. This short statement seeks to provide further clarification to the substantive decision in this matter published late on the evening of 16 December 2024.

1. In respect of Paragraph [36], I add the words highlighted in bold and underlined:

“[36] First, I am required to make a finding as to whether the proposed industrial action would be protected or unprotected.[1] To determine this I must find whether the notice give under s.414(6) specifies the nature of the action and the day on which it will start. The authorities are clear that the purpose of this section of the Act is to provide the Employer with an opportunity to mitigate the impact of the action proposed by making preparations.[2] The authorities also note the need to take into account the specific circumstances, context and nature of the organisation and action being taken.”

1. In respect of Paragraph [38], I add the words highlighted in bold and underlined:

“[38] Where I have determined that the industrial action is protected then I do not need to turn my mind to whether s.418 requires me to make an order. I will however address the submissions of GPC in respect of their submissions that the subsequent withdrawals of action cannot be considered in determining the matters before me. In this respect I note the Applicant relied on the authority in Tidewater.[3] In my view, Tidewater can be distinguished from the present matter in that in Tidewater, the subsequent communication sought to further clarify the industrial action for which notice had been given. In the present case, the Respondents have withdrawn a number of the notices given in their entirety. Where further communication seeks to clarify the action notified to be taken, the Employer is prejudiced by not having the full benefit of the notice to plan for that action. Where the action is completely withdrawn, there is no such detriment to the Employer because there is no need to take any action to mitigate the impact of action no longer being taken. Further, in those circumstances, I find that the industrial action for which notices have been withdrawn cannot be found to be happening,[4] threatened, impending or probable,[5] or is/are being organised.[6] This is in my view consistent with the High Court in Esso[7] where the High Court referred to the assessment of the contravention being concerned with “what is happening at the point of inquiry.”[8]“

DEPUTY PRESIDENT

Appearances:

Mr Charles Martin of Counsel instructed by Ms Bridget O’Connor of Mapien for Gladstone Ports Corporation Limited.

Mr Sunil Kemppi of Hall Payne Lawyers instructed by Ms Margarita Cerrato for the ETU.

Mr Aaron Santelises of the AWU for the AWU.

Hearing details:

By Video
Brisbane
16 December 2024.

<PR782690>

[1] Fair Work Act 2009 (Cth) s.414(6).

[2] Telstra Corporation Ltd v CEPU (2009) 190 IR 342; [2009] FWAFB 1698 at [12], [13], [14] to [18]; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (2010) 190 FCR 581; [2010] FCA 1350 at [58]

[3] Tidewater Marine Australia Pty Ltd v Maritime Union of Australia [2014] of FAC 172 at [28] (Tidewater).

[4] Fair Work Act 2009 (Cth) s.418(1)(a).

[5] Ibid s.418(1)(b).

[6] Ibid s.418(1)(c).

[7] Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at [36].

[8] Ibid.

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